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matter.
Besides, I hold this view in accordance with the
extant rules in many of our jurisdictions, whereas
demurrer has been abolished giving way to the
requirement for the defendant being allowed by the
Rules of court to plead questions of substantive and
procedural law as to be relied upon at the hearing
of the matter with an indication to seek leave to
raise that question by way of an application to be
tried separately before the substantive hearing of
the case particularly so where it has the
potentiality of finally determining the fate of the
action. Surely in that instance it cannot be taken as
a waiver. Thus it is my conclusion that the
defendant has showed by the steps taken in the
matter that it has not intended to waive its right;
and I so find.
In sum, the appellant has cited too many cases in
this matter and to my mind as submitted by the
respondent most of the time inapplicable to the
facts of this case and without even marking the
clear distinctions between irregularities arising
from defects in serving of originating processes as
in such cases as Ezomo v. Oyakhire (1985) 2 SC
260, Adegoke Motors Ltd. v. Adesanya (1989)
3 NWLR (Pt.109) 250, Total Industries Ltd. v.
Amogboro (1994) 4 NWLR (pt.337) 147,
Mkpot Enin L. G. v. PIKK (2004) AFWLR
(pt.236) 287 and irregularities as here arising
from failure to serve pre-action notices. One clear
difference between the two set of circumstances is